Book Review: Unshackled: Freeing America's K-12 Education System

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Education policy has long been a bi-partisan priority, and education has played a significant role in the development of constitutional law—from First to Fourteenth Amendment—over the past century. During the COVID-19 pandemic, debates about the structure of the public school system and the parental right to choose private or home schooling have come to a head.
This program will focus on the debate over reform and school choice through the lens of a new book, Unshackled: Freeing America's K-12 Education System. Co-authors Clint Bolick and Kate Hardiman join education law expert Nicole Garnett to review the new book.
Hon. Clint Bolick, Supreme Court of Arizona
Kate Hardiman, William H. Rehnquist Fellow, Cooper & Kirk PLLC
Moderator: Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame Law School
This Zoom discussion is open for public registration. See above link.

Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at


Nick Marr:  Welcome everyone to this Federalist Society virtual event as this afternoon, March 25, 2021, we're having a panel on to discuss a book review of a recent book published by the Hoover Institute called Unshackled: Freeing America's K-12 Education System. I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that expressions of opinion on today's call are those of our experts.


      We have a great panel with us. I'm just going to introduce our moderator and she's going to take it from there. We are very pleased to be joined this afternoon by Professor Nicole Garnett. She's the John P. Murphy Foundation Professor of Law at the University of Notre Dame Law School and long-time education expert. She's also involved in the Alliance for Catholic Education. And so, Professor Garnett, thanks very much for being with us. The floor is yours.


Prof. Nicole Stelle Garnett:  Thank you, Nick, for having me, and I am so excited to have this conversation with two people that I have known for some time, especially Clint Bolick, who used to be my boss when I was 26 years old in 1996 to 1998. So I will start with Clint. Clint is the co-author of -- Clint Bolick is a co-author of Unshackled and has served on the Arizona Supreme Court since 2016. He is the author of a number of books on topics ranging from immigration to the judiciary to the regulatory state. Justice Bolick serves as a research fellow at the Hoover Institution. Before his court appointment, he was the Goldwater Institute's Vice President for Litigation, helped found the Institute for Justice where he was my boss, and participated in the landmark education case, Zelman v. Simmons-Harris


      Kate Hardiman is the book's other author, works full-time as the William Rehnquist legal fellow at Cooper & Kirk while she is pursuing her law degree at Georgetown. A graduate of the University of Notre Dame, she also taught high school English and religion through the Alliance for Catholic Education program at Notre Dame.


      So delighted to have you both here to discuss this timely important fascinating book. So before -- just to frame it, I'm just curious if you could tell us how you all came to know each other and why you decided to write this book together.


Hon. Clint Bolick:  Kate, do you want to start?


Kate Hardiman:  Sure. So I met Justice Bolick for the first time when I was a senior at Notre Dame, and I had recently completed my thesis on education law and policies, specifically looking at the Indiana voucher. Justice Bolick was actually attending the law school to give a talk on ed law and policy. And I went to his talk and after, as we were leaving, I gave him my thesis and I asked him if he would look at it because I had admired his work in education law and policy for such a long time. And ever since then, we have just formed a relationship and it's been a really wonderful opportunity for me to be mentored by someone who is so experienced in the field. And when I started teaching through ACE, Justice Bolick reached out and he said, "I'm interested in writing a new book. Would you, would you want to help?" And, of course, I didn't turn that opportunity down. So it's just been a wonderful -- a joy to work with him.


Hon. Clint Bolick:  And I would add a couple of things. First, obviously all good things start at Notre Dame.




      But, beyond that, Kate had been -- she's really underselling her own amazing credentials despite her youth. She was writing on education issues for The Washington Examiner and just incredibly insightful articles, extremely well-written and in really topical and cutting-edge. So when I was thinking about having a co-author, I thought of her instantly and I was so glad that she accepted.


      The reason for writing the book, both of us realized that there has never been a book written about true systemic, top-to-bottom, or in our case, bottom-to-top, education reform. How -- there are tons of books on vouchers and on all sorts of other reform measures, but really nothing on how we would -- how we could completely transform a 19th century system of education into a 21st century system of education, and we both were excited to put our minds to that task. And, as you said, Nicole -- and it's so great to see you again. As you said, it's an incredibly timely book because the catastrophic situation in which we find our education system on this very day makes the book's arrival quite timely.


Prof. Nicole Stelle Garnett:  So what a great story. And providentially bringing together people that have been a part of my life for all these years. I thought -- so I do want to say if anyone has any questions, they can type them in the Q and A or the chat and I will keep an eye out. I think we're -- we'd really like to -- we welcome, especially clarifying questions. We'll have time for a Q and A later. So please do that.


      Some people who are listening in -- you mentioned sort of a 19th century education system, and your book is sort of framed around that. And we do in many ways have this education system forged to the post-industrial era for a particular purpose that's particularly static. So Clint and I -- when I began at the Institute for Justice in 1996, a year after I graduated from law school, it was -- there was exactly one voucher program in the United States in Wisconsin. I started, I think, the week that the Wisconsin legislature added religious schools to that program and then we were able to work on that litigation together. I was a very, very junior member of that team, for sure. And then soon thereafter, Cleveland announced its program which eventually goes to the Supreme Court in the Zelman case.


      Since that time there has been a lot of change in education and some of it very positive. We're still proceeding in fits and starts. So I wondered if one or both of you might, just to frame the conversation about the book, tell folks where we stand in the world of K-12 education, particularly as it relates to parental choice.


Hon. Clint Bolick:  Kate, why don't you start off on that one, too? I'll grab the next one.


Kate Hardiman:  Sure. So, I would just say generally, even though parental choice is much different from when you started out, Nicole, as you mentioned, Professor Garnett, excuse me.


Prof. Nicole Stelle Garnett:  You can call me Nicole, for now.




      I can call Clint Clint, and he's a justice.




Prof. Nicole Stelle Garnett:  Old habits die hard. Sorry.


Kate Hardiman:  That's okay. It's certainly true that parental choice has expanded, but the truth of the matter is that most students still attend public schools. And whenever a new parental choice program is passed, it's either met by massive opposition or teachers' unions and usually is the subject of a lawsuit. So, as you said, we're really proceeding in fits and starts here even though this had kind of been the project of the last 20 or 30 years, to get these programs up and running. And there's also, unfortunately, a supply side issue, right? So there could be a parental choice program passed but we're seeing, unfortunately, massive numbers of Catholic schools close, especially in urban areas where they could easily be filled by students if there were to be a parental choice program. So that's another issue that we're facing right now.


Hon. Clint Black:  And to add to that, I think this year I have taken to calling our state of education our "Katrina moment," because just like in New Orleans after Hurricane Katrina when the entire school system was wiped out, we're really having a moment of tremendous upheaval in our public schools. And people who have never questioned the current system are, not only questioning it, they're taking very significant action when it comes to their own kids.


      And to bring it back to your question, Nicole, about school choice, although I have not been keeping tabs, I had dinner with the head of a school choice organization—a National school choice organization—recently, and he said that there is more legislation this year for school choice around the country than just about any other year, including in places that were simply not on the radar before, like West Virginia. And the ideas are just really burgeoning right now. Our proposal is to fund students rather than schools. And I think that that idea, through education savings accounts or other mechanisms, is really beginning to take hold and hopefully will progress because people see that parents need options.


Prof. Nicole Stelle Garnett:  So I'd like to add -- follow up on your point, Clint, about the Katrina moment. I'm grateful that my kids -- I have two in college and two are still at home in Catholic schools. They're all going to class live, in person, under difficult conditions, but they're there and they're live. A lot of children are not, particularly the most disadvantaged kids that are getting left behind by large urban school systems that have not yet opened. They're having day care and they're hiring people to watch them in the classroom, but the teachers aren't there. And I think the moment, the Katrina moment that you mentioned is, after Hurricane Katrina in New Orleans, simply did not reopen its schools. It became, effectively, an entirely charter network of schools and every kid in New Orleans now in public schools and the charter school, and there also are vouchers in New Orleans. So we have options for all of those families.


      And now I had one question about the number of kids in private -- moved from public schools to home schooling to private schools in part because of the live in-person instruction. How can we seize this Katrina moment to take advantage of it, to move, perhaps, from an education system that's focused on bricks and mortar and on the grown-ups in the buildings, and focus more on the families and the children? And what are the steps that need to be taken in order to get to a more child-centered education system?


Hon. Clint Bolick:  So I think that policy typically lags behind reality. And we have parents now taking matters into their hands for the first time in their lives. One of the phenomena that has occurred after our book went to press, are mini schools, pod schools, whatever you might call them, that are proliferating around the country. And although many of them are being formed by wealthier parents, some of the companies that are involved are providing financially to put these schools together for low-income kids, as well.


      And I think the movement for greater parental choice has been extraordinarily active for the last few decades, but what happens is that it hits obstacles all the time. Of course, the vested interest in maintaining the status quo is extraordinarily powerful, I think what's going to happen is we're going to see that that is going to be less powerful. When they use their tried-and-true message of this will destroy the public schools, the reaction won't be, "oh, we're not going to try that, then," they're going to say, "oh, they're already destroyed," and we need to look at alternatives. So I think it's less about pushing the policies because there are groups and other -- and individuals pushing them very passionately. I just think that the, the opposition is simply going to be shown as the emperor with no clothes.


Prof. Nicole Stelle Garnett:  So, Kate, you mentioned the closure of Catholic schools, something that is deeply concerning to me. I mean, what are the arguments -- and I think you flagged this, Clint, about the rise of podding and the rise of the kind of -- what was it -- collective home schooling that has happened among the educated, in particular, is that it will exacerbate existing disparities between the rich and the poor. And we obviously have a deep concern about disparity in COVID because many of the children of color and poor kids are not going to school that were, perhaps, already behind and they're falling behind a year or more, another year behind.


      But at the same time, as you pointed out, Kate, there's a supply issue for the schools that have historically served these children so well, particularly in faith-based schools and, particularly, urban Catholic schools, they -- there are more Catholic schools that closed this year than in any single year in history and enrollment in Catholic schools, despite the fact that many of them are, have resumed in-person instruction, and there are some up-tics in some dioceses, have the biggest enrollment hit in history. So what can we do in order to ensure that if we move to a system of more parent choice, that the options are available for the children at the supply of high quality, low-cost schools that are accessible, even with public trends are available for the kids?


Kate Hardiman:  Well, I think largely -- and please correct me if you think this is not correct -- but I think largely the Catholic schools that have closed have been in urban areas without parental choice programs. So the areas that are seeing up-tics are either suburbs of urban areas like the suburbs of DC. And so we really do need parental choice programs in those inner cities because those parents are needing to leave those schools because it's just not financially feasible for them to chip in however much it costs to send their child. So, I think, in terms of the closure of the schools, there really does need to be some externally aid coming in, whether it's through a voucher or through a tax credit, scholarship program that can be funded by the state, or it can be funded by private philanthropy, but there does need to be some sort of influx in those urban areas where the Catholic schools are serving predominantly the urban poor.


Hon. Clint Bolick:  And I would add to that, there's an article in this month's Atlantic magazine, you may have read this, by Caitlin Flanagan, with the very provocative title, Private Schools Are Indefensible. And she is not talking about most private schools, she is talking about the ultra-elite private schools and, perhaps from her experience, those are the only private schools she knows exist.


      But the fact of the matter is that Catholic schools have been providing a rescue mission for, for generations now, and they are a vital part of redressing the disparity, Nicole, that you talked about. In fact, a lot of Catholic school parents in more affluent areas, would probably hate to know that the educational effect of private schooling on affluent kids is virtually zero, but the effect for low-income kids, especially African American kids, is stratospheric. It's often the difference -- and I'm not being histrionic here -- it's often the difference between life and death. It's almost always the difference in terms of future career opportunities and salaries and that sort of thing. So it's important that these schools be included among the range of options and the U.S. Supreme Court, of course, has recently told us that they can't be excluded from a school choice program.


      But the other thing, though, Nicole you may remember when were in Milwaukee, one of the arguments that was made against the program was there is not enough supply. There are not enough schools. And guess what? When the resources appeared, the supply appeared. There are now so many more charter and private schools in Milwaukee than there were when the program began. And as we're seeing with these micro schools, supply is being enabled by technology in ways that we've never seen before in the educational arena. And, of course, there is a vast supply of untapped school space in church schools that are used one day a week. So I really think that if you give people the resources to choose, we will see a plethora of options.


Prof. Nicole Stelle Garnett:  So you mentioned charter schools and you mentioned -- you talk about charter schools in your book. Charter schools have been truly, I think probably fairly characterized as a disruptive intervention in education. So to put things in perspective for people in the audience, it is actually the case that over half of states now have a parental choice program that provides resources for children to attend private schools, but only about one percent of American children take advantage of those. Charter schools educate six percent of public-school kids and, in some districts, over 50 percent. But one of the hooks with charter schools is they can't be religious. And I have written about this, and I find this offensive that they can't be religious, but so -- and I don't think it's constitutionally required either, but I'm not the speaker.


      Anyway, and I want to get to your antidote which is ESAs in a minute, but why isn't the answer, or is an answer to just let charter schools be authentic religious schools? So like Catholic schools and Lutheran schools and Muslim schools become charter schools, because charter schools get more money than the money typically provided in a private school choice program.


Kate Hardiman: So I think that is certainly one way to approach it, but I personally worry a little bit that that money will come with more strings attached, and I think this is kind of a fear that choice advocates have for programs  writ large, whether it's going to a Catholic school or a Catholic charter that doesn't yet exist, is that what conditions is the state going to put on that money. Are they going to try to regulate what they can and can't teach, that kind of thing? Who they hire? Who they fire? So I think I would be in favor of just keeping the charter sector and the faith-based sector separate for the time being. But I do think that both can continue to expand concurrently and not be in, necessarily, conflict with each other.


      I do know that in some states the charter funding is much higher than, say, a voucher funding that a student can use to go to a private school, and I think that's a problem. And we do talk in the book about the need to equalize funding between mechanisms, and I think that's really important.


Hon. Clint Bolick:  Nicole, I would encourage you to continue developing those ideas and I remember back at I.J. our colleague, Dick Comer, was taking about this anti-discrimination idea that he had, and I remember telling him, "Dick, we've got enough to worry about right now trying to keep school choice programs constitutional. Just put that idea away for a while." And then he came out of retirement to argue the Espinoza case, and his view was vindicated. And I think that case shows that the realm of the, of the possible is broader than even we would have thought it was a couple of decades ago.


Prof. Nicole Stelle Garnett:  Still litigating that case in Maine that Dick and I litigated together. I filed a brief in the Supreme Court last week in that case. Anyway --


Hon. Clint Bolick:  You're ahead of your time. That's all I can say.




Prof. Nicole Stelle Garnett:  So you have a particular policy innovation that you discuss a lot in the book that may not be familiar to folks who are on the, listening in. So it's the education savings account. Can you tell us what that is and why you think that that's the right path forward to this unshackling that you're advocating?


Hon. Clint Bolick:  So, first of all, I should say that we've got a number of policy proposals in the book including removing the middleman in public school education, namely the school districts that take so many resources and add very, very little to the educational enterprise. But in terms of funding, we are supporting an idea that was born in Arizona, and it was born of necessity because our voucher program was struck down under the state constitution by the court on which I now serve. And one of the justices during the oral argument said, "Well, what if the money was not just available for use in private schools? What if it was available for a wide variety of educational expenses?" And we thought about that and we said, "Well, that makes a lot of sense. In fact, it seems to us to be a superior way. Why limit kids to a different set of bricks and mortar schools if that's not what serves their needs the best?"


      So educational savings accounts for kids who qualify for them -- and they now exist in a number of states and in a number of forms. But the general idea is that if you are a qualified student, the state gives you an account—it's like a medical savings account, except for education—that you can use for any educational experience, from private school tuition to select classes or labs or sports in public schools to tutors, distance learning, hardware, software, educational therapy. It's been a special boon for disabled kids whose needs are, by definition, individualized and whose needs are often not served in mainstream public or sometimes even private schools.


      So, in some states, if the funds are not all used, they can be saved for college, which addresses yet a different issue, which is the disparity and the ability of some kids who can't afford to go to college. But this strikes us as the proper way to go, and we think that public schools should be funded this very, very same way, which would be a huge step from where we are right now, where the money goes in the student's backpack to the public school or private school, and it stays there. The school, as an institution, gets to decide how to spend that money, whether it's on higher teacher salaries, better playground equipment, whatever the priority of that school.


      And I think that we would see that the focus in public education, if they were funded this way, would shift from the special interest groups that currently dominate to the parents, the customers. And that has been an innovation in almost every area of American life. It so far has not permeated public education.


Prof. Nicole Stelle Garnett:  So my very limited experience or knowledge of the way ESAs are working in the states is not very well in the sense that they're hard -- so my -- from talking to friends in the Catholic school, for example, it's often hard to know who qualifies and how the system really works. And I think Rob Driscoll, my former student, has a good question that relates to this, which is -- and he's from Wisconsin, I will say. So they have a very -- the first and one of the largest voucher programs in the United States.


      So one question I have is for both of you about ESAs is, "Are they really, I mean, are they workable for schools?" I love them as an ideal, but it seems sometimes that it's very challenging for schools to figure out how to make them work for kids. Unlike a voucher where you just, if the kid qualifies, they get a scholarship and the check comes from the state. That's what happens at St. Jo. Grade School where my kids go to school. And so Rob's question is related. He says, "If ESA, educational savings accounts, are better than voucher programs, what should states with existing voucher programs do? Is a complete overhaul needed or can ESAs be grafted on top of existing voucher programs?"


Hon. Clint Bolick:  So ESAs exist in states that have voucher programs. They exist in states that, like Arizona, that have scholarship programs that are -- which taxpayers get tax credits for contributing to the scholarship funds. And typically, they supplement those systems. They're especially -- and you're absolutely right. Voucher works if -- and this is the case in Milwaukee where you simply, you know what private school you want to go to. You use it as full payment for tuition and that's the end of the story. And a lot of people will use their ESAs that way, as well.


      But they work especially well for parents whose kids have special needs, who are disabled or behind in a particular area and may need tutoring. Vouchers, of course, they pay for private school tuition and nothing else. ESAs are designed for kids who really need an individualized education program, and use the money as they see fit.


      A number of resources exist to help guide parents. There's an organization here in Arizona called "Choose A School", and they help parents navigate what is really a pretty broad system of school choice here in Arizona. And the choices can really be mystifying for parents, especially parents who, themselves, are not educated but know that they need an education for their kids. And they basically ask the parents, "What would you like? What outcome would you like?" And they figure out which school choice program will meet their needs.


      But ultimately, we'd like to see this sort of system supplant the current system of education funding where money goes from the state to school districts to schools to levels of -- layers of political bureaucracy and, instead, directly to parents who would choose what school or whether to use that money in the school.


Kate Hardiman:  I would also just add that I think where I see the real promise of ESAs is for home schooling and for families that want to continue these kind of learning pods that we've seen during the pandemic. So obviously during COVID, there was a lot of forced home schooling. Parents who didn't want to home school, who it didn't work for them to home school, and it was very challenging. But there were also a decent number of families that actually found home schooling working really well for them during the pandemic. And I think, ESAs can work concurrently with a voucher, a tax credit, scholarship, specifically for those students who, like Justice Bolick mentioned, do not want to attend brick and mortar schools. So they can really be sources of funding for these micro schools, but also make those micro schools equitable so it's not just the parents of children who can afford them able to participate.


Prof. Nicole Stelle Garnett:  So I just have a devil's advocate question. Go back to our Katrina moment, our COVID moment, which is, having worked now at Notre Dame in the education area for a long time and hearing a lot about [inaudible 00:30:57] learning and the promise of technology, that was really not my experience with e-learning. And so, I mean, I was one of the parents that Kate just described, that did not wish to home school and wasn't particularly good at it and wanted that school to open so desperately.


      And I wonder -- so one lesson is that our system is broken and that some parents are able to take control of their children's, they're empowered to see themselves as their child's first educator, best educator.


      Another lesson might be that bricks and mortar isn't nearly as bad as we thought it was, and maybe we weren't really ready. We weren't prepared. Are we really at a point where the ideal system that you describe, we're ready to unleash it on every kid in the United States, or should we -- to what extent do bricks and mortar schools continue to be important?


Kate Hardiman:  Yeah, just to clarify. I mean, I think they will -- brick and mortar schools are absolutely going to be important for the vast majority of children, and I think we'll be -- what we avoid in the book, above all, is imposing a one-size-fits-all system, like the current district public school system that we have.


      But I think that what is so interesting to me about home schooling is the diverse coalition that's emerging, right? So you have children who, their parents are choosing to home school them because of safety issues. They don't like the route they need to take to go to school, or you have these kind of Silicon Valley families who want their kids to be coding by age seven, and they start home schooling. And then you have traditional families with traditional religious values who just think that the curriculum in the public schools is going completely insane. And maybe even the local Catholic school is not necessarily orthodox enough. So I think there is such a broad range of home schooling, and it's not that there will ever be enough of those people to supplant brick and mortar schools, but I do think there are coming to be more of them and ESAs have great promise there.


Hon. Clint Bolick:  And I do think that if we made this transition, that the resources are there. For example, the school districts, by and large, responded to COVID by opening their own online education. And I have to say, I don't blame them for not being able to turn on a dime and do that. They weren't expecting it. They weren't prepared to do it. A number of school districts instead outsourced their learning to, to charter online schools that have been in existence for decades. There's one in Florida that added hundreds of thousands of students. These are online schools that really know what they're doing. They even have clubs, virtual clubs, and other activities for the kids that come very close to replicating a school experience.


      And these learning pods are basically home schooling for people who either can't or don't want to home school, which includes a vast number of parents. I would put myself in your category, Nicole. I couldn't wait for the school to reopen. Where basically parents pull their resources and hire a full-time teacher, and it's highly individualized and very, very high quality, bringing in, by Zoom, some of the best teachers in the country supplemented by the teacher who's in the learning pod. This is something that people weren't even thinking about a year ago, and yet a huge number of people are doing this and finding, "Hey, this makes sense for my child, and I'm going to keep doing this even after the brick-and-mortar schools open".


Prof. Nicole Stelle Garnett:  So, on that, we talked about the pods, and the pods are mostly an elite phenomenon right now. And if you're talking about really dismantling and unshackling the K-12 education system, one thing that the school choice movement has tended to focus on is limiting eligibility to private school choice -- charter schools are universal eligibility, but private school choice tends to be either kids with special needs or lower income families. Are you suggesting that these ESAs go to all children, that we eliminate those qualifications and that everybody gets this kind of ESA to spend as they want regardless of how wealthy they are? And, if so, is that consistent with the principles of social justice and equity, or should we be focusing on the lower income kids, the kids who need it most who are those left behind by the current system?


Hon. Clint Bolick:  Well, I think that any or all of the above. I know that's an evasive answer, but I've always thought that we ought to start with the kids who need help the most. But the fact of the matter is that if you make ESAs broadly available, public schools are going to respond to this new competitive dynamic. And that's exactly what we need to happen so that even kids who are going to attend public school no matter what, we need to improve, dramatically improve those schools.


      One other thing, I -- these learning pods are such a new idea. I remember Representative Floyd Flake from New York -- I don't know whether you ever met him, just an astounding guy, a Baptist minister, and he was always trying to get black churches to open schools. And so many of them said, "We don't want to get into the education business. We don't know how to do it. We don't have the resources to do it." Every one of them could have learning pods that they sponsor in their classrooms right now. And if we have ESAs or other forms of school choice, then we're going to really reduce the disparity that afflicts our kids right now.


Prof. Nicole Stelle Garnett:  So I think the next question is a good one for Kate, as a teacher, a former teacher. So with all the needs of so many students being so varied, as you point out, and their pathways to education ideally different in an ESA model, how do we then go about shifting how we train and prepare the next generation of educators? And perhaps do we start there, to re-work the system, rather than in the government?


Kate Hardiman:  Yeah, that's a great question. I definitely think if children are learning in new ways, then teacher training will absolutely have to change. One thing I loved about ACE is that I do think it was really individualized. I mean, we were all broken up into our levels: so various high school teachers, middle school teachers, and then also into our subject matters. And we learned how do you teach tenth grade English, specifically. So I think the way that teacher training is done will absolutely have to be overhauled, as well. I mean, a lot of scenes have teacher training programs that are very formulaic and teach people how to be district public school teachers and that model is not necessarily going to work for ESAs.


      But the other thing we note in the book is that teacher training actually, in a lot of instances, doesn't translate to student outcomes. So I think overall there's just a disconnect between how are we training people and then what are the actual outputs in terms of student learning.


Prof. Nicole Stelle Garnett: So this is actually related to a question, teacher training formulas and licensures, just one aspect of all of this, obviously, but I have a question that says --and this is a big question, so maybe it'll give you the opportunity to sort of unpack many of the great arguments you make in your book. So, "What are the shackles that you suggest should be broken, and why would that be good?" So we could go down the list.




Hon. Clint Bolick:  Well, the main one, we conduct a thought experiment in the beginning of the book, and that is if we were designing a K-12 system from scratch today, with all of the technology that we have at our disposal but no preconceptions about what K-12 education ought to look like, what would it look like? And so you see a lot of shackles along the way. For example, the fact that like most health insurance, you have a third-party payer for the services you are receiving. That never works well. It's expensive and not geared toward consumer gains.


      But probably the biggest one that we see is America is one of the most highly regulated education systems in the world. We have more bureaucracy, according to the OECD, than Russia does. And Russia loves bureaucracy, whereas we're supposed to hate it. And the worst aspect of it is school districts. A lot of conservatives say we'd have local control over education and, of course, I think that that's true, but the local control ought to be at the school level, not these artificially created school districts that are, themselves, political politburos that are very subject to capture by special interest groups, and they absorb so many resources and shackle the ability of teachers and principals and parents to control their lives.


      So we'd like to see schools that are essentially charter schools, except they would be operated by the government, where the money comes through the parents to the school and each school has its own board that is focused on delivering a high-quality product. We could have things like merit pay, for example. We probably wouldn't have the gold-plated pension systems where now the L.A. school district is paying former teachers huge sums of money even though they haven't educated a student in decades.


      So those are the kinds of shackles that come with the current system, and rather than top-down reform schemes that have been so popular in both Republican and Democratic administrations, we see bottom-up reform, parental -- true parental -- empowerment, but also true school empowerment as being the way to get our system away from one that is on par with Poland and other countries that we would never want to be on par with. And on par with China, who we really need to be competitive with, but we're not.


Prof. Nicole Stelle Garnett:  Kate, do you have anything, other shackles that you want?


Kate Hardiman:  I would just add that, I mean, obviously a big shackle, and I saw that someone put this in the chat, too, are teachers' unions. And I think one way to sort of circumvent their influence is to empower parents because right now the players with the power in the system are the special interests. And traditionally, parents who have sought and who have wanted choice are lower income inner city folks and they do not historically or now have political power. So they are at the mercy of the unions in many respects. And we've seen this all across the country in urban districts that have kept schools closed for the entirety of COVID. So I would add that that's another important thing that needs to be unshackled, but I think there's a robust debate about how to best unshackle the influence of teachers' unions.


Hon. Clint Bolick:  To add something very quickly to Kate's point, we cited a study that showed that if the increase in bureaucracy had not exceeded, as it has dramatically done, the increase in student population over the last couple of decades, we could give every teacher in the country an $8,000 pay increase. The fact is that the best teachers in our country should be making in triple figures. That will never happen in the current system. And where it's a one-size-fits-all system and the worst teacher makes exactly the same amount of money as the best teacher. But putting hands in the power of parents and schools, I think we're going to see the very best teachers rewarded like they should be for the first time, and hopefully that will diminish the power of those who are really holding the system hostage right now.


Prof. Nicole Stelle Garnett:  So I have been trying to monitor both areas of questions here. There's a couple questions about ESAs that I think are important. So how would education savings account function in poor rural areas with low populations? And another about ESAs and how would they affect immigrants?


Kate Hardiman:  So I think in terms of the rural areas question, this is actually an area where ESAs have far more promise than any other type of choice program, right? Because in an urban area, you have schools to choose among, but in a rural area, there may only be the district public school. So an ESA has unique promise in a rural area if a family wants to engage in some sort of distance learning, home schooling, pod, that kind of thing, whereas in an urban system there might also be a voucher. In a rural system, it would be very difficult.


Prof. Nicole Stelle Garnett:  So what about immigrants? I know some undocumented parents might be worried about getting involved in these -- the tax system, be afraid to sign their kids up for these things, I mean, sort of, or not understand, there may be language barriers. And Clint, you pointed out there are civil society non-profits that can help. There's not enough of them, in my view. I think that information is a huge impediment to effectively implementing parental choice. But what about immigrants in the United States accessing opportunities through the model that you propose?


Hon. Clint Bolick:  So this is a really interesting issue and, frankly, I've never been asked this question before, so I commend the person who asked it. I used to be on the board of a scholarship organization, and our chairman wanted to make it a requirement that students show that they were U.S. citizens in order to receive a scholarship. And I fought that proposal very tenaciously and won, and he resigned, and then I was stuck with being chairman of the organization for many years. So good deeds do get punished.


      But I do think the U.S. Supreme Court has recognized that education is one of the services that must be provided to immigrants, both legal and illegal. And as long as we are doing that, it is in our best interests, as a nation, to provide the highest quality education as we possibly can.


      And the one-size-fits-all system often means that students who are ESL students get left behind and they fall further and further behind. If you have these private alternatives, or even public alternatives, that can be emulated greatly. Definitely language barriers, but, as you say, I think either public or private resources geared to helping parents understand what their choices are, without -- I think it's very important to do so without penalty, without exposing them to any sort of penalty, I think is the way to go.


Prof. Nicole Stelle Garnett:  So I have a -- there's a question in the chat that's related to this, slightly different take on parents who -- so one concern about immigrant parents might be they may not know what they need, what their kids need, but this is a different question. What do parents -- is there any indication that parents would favor schooling that includes moral training, and would that be good or bad for our republic?


Kate Hardiman:  Moral training, well, I mean, I think that arguably all Catholic schools provide moral training, or at least they should. So I don't think that's necessarily a bad thing at all. I think that's what makes those schools distinctly Catholic. And the same could be said about any number of sectarian schools, and that has long been recognized as something that is beneficial for our country. And such schools also teach -- have been shown to teach citizenship and the values of being an American and succeeding and flourishing in this country. So I don't think that moral instruction is bad at all for schools to be providing. In fact, I think there should be more of it.


Hon. Clint Bolick:  Indeed, and even in the public sector. I served on the board of the Great Hearts Academies, which very, very much promotes western values; very, very overtly studies -- all of the students study the classics, including the Bible and the Quran. And they graduate students who really have tremendous values. At the same time, these schools are available for secular parents who reject that sort of thing. And we have to -- if we're going to go down the route of greater parental autonomy, we have to accept the fact that there are going to be choices that people make that we wouldn't make for our own kids, and we have to embrace that and say that that's a virtue of the program, not at all a defect.


Prof. Nicole Stelle Garnett:  So a number of people have asked questions about the international landscape. How does our education system level of choice measure up against other countries, and what are some of the best examples internationally of systems with more parental choice?


Hon. Clint Bolick:  So we are, among western countries, or I should say industrialized countries, we are an outlier. Most European countries support, either directly support private schools, which we cannot do here because of the Establishment Clause—or, at least, at the moment, we can't do that. Or they provide some sort of voucher type assistance.


      And when you look at the international comparisons, our competitors are cleaning our clocks. One of the statistics that we actually put in italics in the books because it was so shocking was that the poorest ten percent of students in Shanghai outscore the ten percent, top ten percent most affluent students in the United States in math. So the kids that we think are getting the best education in the United States are being pulverized by the poorest students in China. That is simply intolerable. We can't -- we won't be in our position 20 years from now if that continues to persist.


      So we shouldn't be asking whether a particular reform proposal is too radical. We should be asking whether it's radical enough, because we have a lot of ground to make up, not just with China, but with Russia, and with economic powerhouses like Japan and South Korea that are -- we have to import STEM students for our college STEM programs because we don't have enough American kids who are capable of competing at that level. And that simply can't last.


Prof. Nicole Stelle Garnett:  So I teach property law and we had an outside speaker today thanks to the miracle of Zoom, and he was a major venture capitalist. And the person who was moderating asked, "What do venture capitalist lobby for?" And he said, "More liberal immigration reform so that we can get more scientists into the United States." And I thought that was very telling. It ties into your point.


Hon. .Clint Bolick:  It sure is.


Prof. Nicole Stelle Garnett:  I think the best system in the world is Australia, by the way. In Australia, all schools are funded at the same level. Private and public, religious and non-religious, and if you teach more poor kids you get more money. And that system works very, very well.


      So I have a -- there's a question in the chat that asks about regulation. So in other countries, it is true, it's not actually just true in the developed world, it's true in the developing world, as well, that there tends to be much more money for private schools, but it tends to come with more government oversight. And Ashley Berner at John's Hopkins who, I'm sure you know, has written about this, the getting the equation right, the pluralist equation right. If we have more finances for more freedom and more choices, then there also has to come with accountability for those choices, the money, without smothering pluralism. So there's a line between accountability and control. And if we had more ESAs, what kinds of accountability regulations do you think are appropriate and which ones do you think should be off the table?


Hon. Clint Bolick:  Kate, do you want to start?


Kate Hardiman:  Sure.  So one thing that we definitely discuss in the book is that students, regardless of what choice program they utilize, should take whatever state or national tests as agreed upon as a norm reference standard, and that is a way to hold all families accountable.


      There is also some different accountability with ESAs just in terms of tracking the spending, right? So the state can set it up where the purchases by the parent or the family are approved on the front end from the list of approved things they can use the money for or approved retroactively on the back end. So that's kind of an accountability that is specific just to ESAs. But in terms of academic accountability, definitely all taking the state tests.


      Where I think state accountability could go awry is when a state comes in and starts telling a school what it can and can't teach. And I see that most likely being problematic for religious schools that want to teach views that are more traditional, that kind of thing. That, I think, we would definitely disagree with as a form of sort of accountability by the state.


Prof. Nicole Stelle Garnett:  What about hiring and firing of teachers and the admissions of Students? That's where the rubber hits the road. Those are the fights that are coming down the pike.


Kate Hardiman:  Yeah, I think that would go back to our preference for local control at the school level. And ultimately, whether the school is public or private, whether it's receiving state funds or not, the school should have autonomy to decide who it admits and who it hires and fires.


Hon. Clint Bolick:  Agreed. And that's, -- and how much they're paid. Very, very important. Just to add two quick points. One is that there are output regulations and there are input regulations. Charter schools are measured by output, that is increasing improving their students' outcomes. Traditional public schools are regulated heavily on input, and no one really seems to care. There are very few consequences for failure to put out a quality product. And I think that we should shift the focus of regulation to outcomes. And we get into this in the book, specifically adding value and individual student progress.


      The other is that we are one of the few countries in the world that regulates its public schools at three levels of government: federal plus state plus local. And one of the shackles that we hope to remove is the overregulation of public schools, and allowing them far greater autonomy to provide a high-quality product for their kids. So this is one of the innovative aspects of our book that I hope will commend it to readers.


Prof. Nicole Stelle Garnett:  Well, we are almost out of time, and I have a lot more questions I haven't been able to ask from the audience, but, Kate, any last one? You have one minute for any last thoughts, Kate or Clint? Besides read the book?


Kate Hardiman:  I would just say thank you, thank you to FedSoc for having us. And that I would underscore for, especially all those who are parents in the audience, is that we really endeavored to write this book for parents, not policy folks, because we think that this is something that all parents should care about, whether they're in love with their child's school or whether they hate it, because education is really an issue that effects everyone in the country. So we hope you'll give it a look.


Hon. Clint Bolick:  And I, too, thank The Federalist Society with which I have been very happily involved since the dark, before pizza days, so that dates me quite a bit. But I agree with Kate. And, by the way, she designed the cover and it's just fantastic, in my opinion, eye popping. But all, everyone on this call should become involved in education in some way, not only as parents, but as board members, or as advocates for change, or suing people if you're a litigator. But we have to get engaged on this issue because the need for reform is so urgent.


Prof. Nicole Stelle Garnett:  Well, thank you, and thanks to The Federalist Society and to everybody who joined us today.


Nick Marr:  Thank you very much. I'll just offer a quick thanks on behalf of FedSoc to our panelists, our moderator for giving us the benefit of your valuable time and expertise in talking about these important issues, for reviewing your book. To our audience for calling in and your great questions. This is some of the most questions I've ever seen in a panel, so really good job.


      Just a quick reminder, be checking your e-mails and our website for announcements about upcoming Teleforum calls and events. Tomorrow we have a featured Zoom panel at 2:00 p.m. on solicitor general position changes. It's an increasingly relevant topic. And so go check out our website and to register for that. Hope to see you there. Until then, we're adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at